United States v. Craig , 156 F. App'x 643 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-40298
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD L. CRAIG; ROBIN L. ROSS,
also known as Twice R.,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:01-CR-11-1
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the convictions and sentences of Richard
L. Craig. United States v. Craig, No. 04-40298 (5th Cir. Dec. 10,
2004) (unpublished). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125 S.
Ct. 738 (2005). See Craig v. United States, 125 S. Ct. 1877*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40298
-2-
(2005). We requested and received supplemental letter briefs
addressing the impact of Booker.
Craig argues that his sentence was plainly erroneous under
Booker. He concedes that our review is for plain error only
because no Sixth Amendment objection was made in the district
court. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005), cert. denied, --- U.S. ----, 126 S. Ct. 43 (2005).
There is no dispute that the first two prongs of the plain
error standard are satisfied; there was Sixth Amendment error and
the error was plain. See id. at 520-21. In order to meet the
third prong of the plain error standard, Craig must demonstrate
“that the sentencing judge--sentencing under an advisory scheme
rather than a mandatory one--would have reached a significantly
different result.” Id. at 521.
The district court sentenced Craig at the top of the
guidelines range and there is no indication in the record what the
district court would have done had it known that the guidelines
were advisory. Craig’s argument that the district court would have
given him a lesser sentence because the facts did not support the
sentence enhancement he received is refuted by the record. Given
these circumstances, Craig has not met the third prong of the plain
error standard. See id. at 522. Craig’s arguments that the error
was structural and that prejudice should otherwise be presumed are
foreclosed. See United States v. Malveaux, 411 F.3d 558, 560 n.9
No. 04-40298
-3-
(5th Cir. 2005), cert. denied, --- U.S. ----, 126 S. Ct. 194(2005).
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Craig’s convictions and sentences.
AFFIRMED.